Essay of the Day: Free Seeds, Not Free Beer

* Article: Free Seeds, Not Free Beer”: Participatory Plant Breeding, Open Source Seeds, and Acknowledging User Innovation in Agriculture. Keith Aoki. UC Davis Legal Studies Research Paper Series ; Research Paper No. 167, April 2009


“This essay has examined the relevance of user-innovation in the context of participatory plant breeding. This essay first looked at the shift during the 1980s to the early 1990s from a common heritage approach to a sovereign property treatment of PGRs and the consequences this shift had for intellectual property rights in such resources. Next, this essay looked at crucial distinctions between treating PGRs as “open-access” resources where no one has the right to exclude collection/exploitation of such resources and a “limited commons” treatment of such resources that are a “commons” on the inside and “private property” on the outside, with the insiders able to set conditions on the use of such resources. Finally, this essay assessed the potential to use lessons from the open software movement to use licenses from the international network of seed libraries/gene banks to leverage more open access for farmers and plant breeders to such resources to counterbalance the pervasive colonization of this area by private intellectual property claims asserted by large multinational agrochemical entities.”



‘In the context of user-innovation, agriculture has been a field where farmers substantively contributed to developing and improving existing and new plant varieties. This essay paraphrases Free Software Foundation and computer programmer par excellence Richard Stallman’s description of what “free software” means in the context of what the open source software movement may have to impart to contemporary plant breeding. It looks at how the rise and expansion of intellectual property rights in plants and varieties during the twentieth century has significantly reduced the role of farmers in plant breeding, turning them into consumers providing labor to raise crops in which others hold the underlying intellectual property rights.

This essay makes three basic points.

First, it examines the shift in the treatment of plant genetic resources (PGRs) from “common heritage” to “sovereign property.” This shift occurred during 1980s through the 1990s and was embodied in the characterization of PGRs in the 1983 International Undertaking on Plant Genetic Resources (IUPGR) to the characterization in the 1992 Convention on Biological Diversity (CBD) as “sovereign property.” This was a development that was harmonious to expanding intellectual property rights in such resources as articulated and required by the 1994 Trade Related Aspects of Intellectual Property (TRIPS).

Secondly, this essay stresses the relationship between the public domain and intellectual property rights by examining the difference between “open access” resources, where no one has the right to exclude, and “limited commons” resources that are shared within a group but that are off-limits to free exploitation to outsiders. In the context of PGRs, this essay looks at the way that the 2001 International Treaty on Plant Genetic Resources (ITPGR) creates a type of “limited commons” for a limited number of crops and forages and what the benefits and drawbacks of such an approach has.

Finally, this essay suggests that, in the pervasive colonization of global industrial agriculture by intellectual property controlled by large multinational agrochemical entities, open source license principles may help farmers and plant breeders cooperate in creating decentralized spaces for participatory plant breeding and ironically using “private” contracts and licenses to leverage greater and more open “public” access to plant varieties and the genetic resources they contain.”

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